The Case
Cookies and… Scream
Moe and Cindy were returning home Saturday night after spending the weekend with Cindy’s parents. They stopped off at a local ice cream parlor and purchased ice cream cones that they ate in their car in the dark. As Cindy got to the bottom of the cone, she reached with her fingers to the bottom of the cone to eat what seemed to be the last chunk of chocolate. After biting into it, Cindy began screaming and discharged from her mouth a sizeable roach. Utterly repulsed, she repeatedly vomited. After tending to his wife, Moe stormed into the ice cream store and berated the store owner for the incident, demanding compensation for his wife’s mental and emotional anguish. The store owner was sincerely apologetic but refused to resolve the matter that evening.
Moe and Cindy filed a written complaint to our Bet Din, claiming $10,000 in compensation. In Bet Din, the store owner explained that his store had been operating for over nine years and he never encountered a complaint. Furthermore, he recently passed an inspection with the board of health. He felt that the incident was due to circumstances beyond his control and that he should not be liable for the unfortunate experience.
How should the Bet Din rule, in favor of Cindy or the store owner and why?
Torah Law
According to Torah law, one who damages another can be liable to pay the victim for five distinct types of compensation. Obviously, a victim is entitled to compensation for permanent bodily damage sustained. In addition, a victim may, when applicable, collect compensation for pain suffered, the loss of employment, medical expenses, and the humiliation experienced because of the incident. Specific formulas to calculate each type of compensation due is prescribed by our sages. Compensation for mental anguish generally falls under the category of medical expenses, as the money collected serves to offset the cost of the therapy needed to help heal a suffering victim.
Many conditions apply before a victim can collect payment for damage suffered. While it is outside the parameters of this article to encompass the numerous exemptions applicable to damage liability, the following information serves as an indication to the intricacy of Torah law. A competent halachic authority must always be consulted before determining Torah law.
According to the ruling of the Shulhan Aruch, in instances where an offender performs an act that indirectly results in damage, a Bet Din will not forcibly collect payment from him. While the offender is responsible by Divine decree to compensate for the damage caused, a Bet Din will not intervene and collect on behalf of a victim. In addition, if the indirect damage was done without malicious intent, the offender is absolved from all responsibility. Hence, in instances of indirect damage resulting from circumstances beyond the defendant’s control, he is absolved of all liability.
In the classic Talmudic case of an animal that ate poison that was placed in front of it, the decision was not to forcibly collect from the offender who had placed the poison, but rather to inform him of his moral obligation by Divine decree to compensate the owner for the loss of his animal. There is a dispute between leading halachic authorities in explaining the logic behind this ruling. While all authorities agree that the incident constitutes a standard case of indirect damage, they differ regarding the exact rationale. Some commentators explain that an animal, by nature, has a keen sense of smell that protects it from eating dangerous substances. And thus, even if poison is mixed with animal food, it is clearly within the capacity of the animal to refrain from eating it. Therefore, if an animal consumes poison, the act cannot be attributed to the wrongdoing of the one who merely placed the poison in front of it.
Others explain that an offender can only be liable to pay compensation if he plays an active role in inflicting damage. If, however, the offender is completely passive at the time of damage, and it is rather the victim who actively inflicts himself, compensation cannot be forcibly collected from the offender. Therefore, even if it is likely that an animal will eat the poison that is mixed with its food, the offender is exempt, since the animal actively inflicted itself by initiating the consumption of the poison. Although the offender placed the poison within reach, his only liability is to meet his moral obligation of reimbursement prescribed by Divine law.
This halachic debate has far-reaching implications. According to the first opinion, if somebody placed in front of another person food that is not fit for consumption, it may legally be rendered as direct damage, enabling a Bet Din to collect from the offender. Unlike dogs, a human being will not necessarily distinguish an inedible product by its smell, and thus the offender is liable for all subsequent damage. Nevertheless, even according to this opinion, if the victim sensed a potential problem with the food and chose to continue eating, then the act of damage might not be attributed to the offender, since the victim ate the food despite sensing something was awry.
However, according to the second reasoning mentioned, the act of placing inedible food in front of another person to eat renders one liable only by Divine decree. Since the offender was completely passive, and the victim, albeit unintentionally, inflicted himself by consuming the food, a Bet Din will not exact payment from the offender. Hence, if the defendant who placed the inedible food for another to consume was not negligent, and had no malicious intent while serving the food, then, according to this opinion, he is absolved from all liability.
As a rule, a Bet Din will incorporate into Torah law a custom practiced in a commercial market. In the food and restaurant industry, a minimal standard of cleanliness is required. The store
owner implicitly guarantees, and accepts responsibility, to ensure that his product meets these standards. Hence, depending on the specific case at hand, a Bet Din may require an owner to compensate a client when a health violation occurs due to poor environmental standards.
Endnotes: Baba Kama 83b, 47b; Tosafot, Baba Kama 47b “hava lah;” Rosh, op cit, citing Orah Lahaim; Rambam, Hilchot Nizke Mammon 4:2; Hazon Ish, Baba Kama 14:9.
VERDICT: Unintentional Encroachment
From a halachic standpoint, Cindy is not entitled to compensation for the anguish she suffered. She did not incur any medical expenses for the painful incident. Furthermore, as discussed, a defendant is exempt from payment in cases of indirect damage caused by circumstances beyond his control. After investigation and review of the files at the Department of Health, it emerged that the store was running a clean operation, met all environmental standards, and was free of any complaints on record. Furthermore, the roach was found at the bottom of a cone, a product that was supplied by a cone distributor who is unaffiliated with the store owner, making it impossible for the owner to prevent the incident. Moreover, when questioned, Cindy admitted that as she picked up the roach with her fingers, she sensed a potential foreign substance, but nevertheless continued to eat. Hence, since it was within her capacity to refrain from eating, the act cannot be attributed to the store owner. In addition, halachically, the store owner played a passive role in the subsequent damage, as it was Cindy who ate the cone. Since the damage was caused by circumstances beyond the store owner’s control, he is absolved from all responsibility.
Nevertheless, for the sake of peace, and with a commitment from Moe and Cindy that they would not slander the store in the future, the owner agreed to pay Cindy $500.
YOU BE THE JUDGE
Lost and Found
Debbie and Joey were married less than a year when they realized that their ketuba was lost. Since Debbie did not remember ever storing her ketuba for safekeeping, the couple decided to review their wedding video to determine who was entrusted with the ketuba. The video indicated that Debbie’s mother had placed the ketuba on a small table at the time of the ceremony and it is very likely that it was left there unattended and was disposed of after the wedding. Although the ketuba was lost, a much more disturbing find was discovered upon study of the video. One of the witnesses of their kiddushin was Joey’s close relative. At this point it was evident that the young rabbi who officiated their wedding was incompetent, as the video showed that he never carefully chose valid witnesses prior to the marriage, but rather randomly picked two people to witness the marriage. Our Bet Din reached out to the rabbi, who admitted that since the witnesses did not object to the appointed role, he assumed that they were not related. With a very embarrassing situation at hand, the couple confidentially reached out to our Bet Din seeking a remedy for their problem. Do they need to remarry? If so, can it be done without a formal ceremony? Are the wedding blessings to be said all over again? Which date is to be written on the new ketuba, the day of their mistaken ceremony or today’s date?
How Should the Bet Din Rule and Why?
(This case is from the archives of the files of the Bet Din dating back over a decade ago. Due to the sensitivity of the matter, at that time it was not published. As with all cases published, the names and details are changed in order to protect the confidentiality of the parties involved.)